Because of the difficulties civil litigants have encountered in challenging section 702 of the Foreign Intelligence Surveillance Act (as created by the FISA Amendments Act of 2008), the most realistic forum for judicial review of the constitutionality of section 702 has been through a motion to suppress evidence derived from section 702 in a criminal case (especially once the government actually began disclosing that it was relying upon such evidence). Yesterday, Judge Kane (D. Colo.) issued perhaps the most significant ruling to date on a motion to suppress 702 evidence. In a nutshell, Judge Kane denied the motion, holding that, both on its face and as applied to the defendant, Jamshid Muhtorov, section 702 violates neither the Fourth Amendment nor Article III. In the post that follows, I briefly summarize Judge Kane’s reasoning, and then explain why each conclusion is deeply incomplete — and should raise serious grounds for a post-conviction appeal to the Tenth Circuit. In a nutshell, though, yesterday’s decision may well have raised more questions than it answered.

I. The Fourth Amendment Issue

Curiously, Judge Kane jumped over what is perhaps the most significant question raised by the collection of US persons’ communications under section 702 — whether, and to what extent, the Warrant Clause of the Fourth Amendment applies in such circumstances. Rather than deciding whether section 702 falls within the “special needs” or “foreign intelligence surveillance” exceptions to the Warrant Clause, Judge Kane simply concluded that he could bypass those queries in favor of the second part of Fourth Amendment analysis — whether the underlying search was “reasonable.” In his words (page 25): “I find the special need/foreign intelligence exception argument somewhat academic and limiting, because the standard ultimately is one of reasonableness, and it is on that standard that the constitutionality of § 702’s warrantless surveillance authorization must be decided.” To be sure, warrantless searches will nevertheless often satisfy the Fourth Amendment if they are reasonable, but usually only when an exception to the Warrant Clause applies.

After sidestepping the Warrant Clause, Judge Kane conditions his assessment of reasonableness on an important — if not entirely self-evident — conclusion, that “While Mr. Muhtorov and others have a reasonable expectation of privacy in the content of their communications generally, those interests are at least somewhat diminished when transmitted to a third party over the internet” (page 28). In other words, even where content is at issue, the third-party doctrine has some effect on expectations of privacy — and, as such, on the concomitant reasonableness of government intrusions therein. Finally, insofar as the Fourth Amendment problem may arise not from the collection of US person content, but its retention, Judge Kane highlighted the minimization procedures, and concluded that “Accessing stored records in a database legitimately acquired is not a search in the context of the Fourth Amendment because there is no reasonable expectation of privacy in that information. Evidence obtained legally by one police agency may be shared with similar agencies without the need for obtaining a warrant, even if sought to be used for an entirely different purpose.” Thus, on its face, searches under section 702 are not unreasonable for Fourth Amendment purposes.

Turning to Muhtorov’s case, specifically, Judge Kane concluded that “a proper and supported application was filed, and that the targeting and minimization procedures forwarded were tailored to the government’s legitimate foreign intelligence purposes and took into account the privacy interests of individuals whose communications would be incidently acquired.” In other words, even if section 702 could be applied in a particular case in a manner that was unreasonable under the Fourth Amendment, this wasn’t it.

II. The Article III Issue

Judge Kane also devoted a fair amount of attention to a concern I (and others) have long expressed about the FISA Court — that, insofar as it’s doing far more than authorizing individualized warrants or subpoenas under section 702 (and without any focus on a concrete and individualized case), proceedings before it fail to satisfy Article III’s “adverseness” requirement, since they are, in almost every case, ex parte. As Judge Kane explained, “FISC’s job under the FAA is substantively different than it is under traditional FISA and under any of the other examples of ‘traditional judicial function’ the government cites. Under the FAA, incidental interceptees are part of the surveillance contemplated, but no particularized information about them or their communications practices is presented to FISC for consideration” (page 22). In other words, Judge Kane agreed with Muhtorov that, from an Article III perspective, section 702 raises a novel and significant Article III question. But then he summarily answered it: “Whether that role offends Article III sufficiently to invalidate § 702 as a tool for gathering foreign intelligence information is one I leave to a higher court. For purposes of the case before me, my judgment is that it does not” (page 23). In other words, after acknowledging the seriousness of the Article III problem, Judge Kane passed the buck — offering no analysis in support of his unsubstantiated “judgment” that section 702 “does not” violate Article III. (Folks interested in more detail on the Article III objections to section 702 should check out this Brennan Center report, and my own brand-new article, The FISA Court and Article III, 72 Wash. & Lee L. Rev. 1161 (2015).)

III. The Unanswered Questions in Muhtorov

As the above should make clear, perhaps the most important feature of yesterday’s ruling in Muhtorov is how it doesn’t actually answer the two most significant constitutional questions presented — whether warrantless collection of US person content under section 702 violates the Warrant Clause (which in turn depends upon the scope of exceptions thereto, such as the foreign intelligence surveillance exception), and whether the proceedings before the FISA Court violate Article III. Judge Kane purported to sidestep the first question by focusing solely on reasonableness, and he simply passed the buck on the second by suggesting that he’d leave it to a higher court.

In theory, Muhtorov could conceivably pursue an interlocutory writ of mandamus from the Tenth Circuit on the Article III question, although such a challenge would not be to the jurisdiction of the trial court, but rather to the jurisdiction of the FISA Court, and so may encounter procedural difficulties unrelated to the merits. Most likely, though, both the Article III and Fourth Amendment issues will now be put on hold pending the criminal trial of Muhtorov and his co-defendant, and will only return to the judicial spotlight on a post-conviction appeal to the Tenth Circuit. If and when that happens, though, I have to think that the Court of Appeals will find very little of use in the yesterday’s analysis — and much still to be decided about the relationship between section 702, the Fourth Amendment, and Article III.